Dispute Resolution Flashcards
(48 cards)
What is a Part 36 offer?
It is a formal, written settlement offer which is designed to encourage parties to make and accept reasonable offers, through a system of financial incentives and consequences.
It is designed to encourage parties to settle early, as there are specific cost consequences if it is not accepted by trial. The outcome of acceptance is more certain for parties, than relying on the court’s discretion for costs.
They can be made by either party, at any stage of proceedings.
Part 36 offers must be genuine attempts to settle and must be ‘without prejudice save as to costs’
What is the fundamental rationale behind a Part 36 offer (from offeror’s / offeree’s perspective)?
Offeror’s perspective:
- Make a valid Part 36 offer and potentially obtain extra benefits at trial if the offer is not accepted
Offeree’s perspective:
- Receive a valid Part 36 offer and potentially face sanctions at trial if the offer is not accepted
What is the standard and burden of proof for a civil claim (contract or negligence)
The claimant must prove their case (duty, breach, causation and loss) on the balance of probabilities
- This means the claimant’s case is more probably true than not true
- Every fact in the dispute must be proved. The burden generally falls on the party asserting it
- The burden of proving any issues of fact or law generally fall on the party who asserts it
What is the purpose of evidence at trial
Evidence is how a party seeks to prove that its case is the right one
- Every fact in issue must be proved, and this is done by evidence
- Evidence must be relevant to a fact in issue
Oral evidence at trial
The general rule is that any fact proved by evidence of a witness at trial must be proved by oral evidence. This means that the witness needs to attend to give oral evidence at trial
Witnesses are required to serve a witness statement in advance of the trial
- The witness statement stands as evidence in chief at trial to save time and costs
Expert evidence
The court’s permission is needed to adduce expert evidence at trial
- The costs of instructing experts can be significant
- Court controls what evidence can be put before the court at trial
- Party can instruct as many experts as it likes, but needs a direction to rely on expert evidence at trial
- Expert evidence is restricted to that which is reasonably required to resolve proceedings
The expert produces a report and this is (usually) the evidence which is then put at trial
What is disclosure?
The process whereby parties exchange documents relevant to the dispute
- Disclosure = state the document exists
- Inspection = party to whom it has been disclosed looks at the document
The general rule is that if a party discloses a document, they have a right to inspect it
The obligation for disclosure comes from a court order, given either on allocation or at a case management conference
- Disclosure is a continuing obligation: any duty of disclosure continues until proceedings are concluded
- There is no need to apply to court for disclosure if a new document comes to light, simply disclose it on the other party
Advice to clients about disclosure duties and preserving documents
At the outset of the matter:
- Advise clients to preserve all documents
- Not to create any unnecessary documents that might not be privileged
Solicitor must ensure a client’s compliance with duty of disclosure
- A party cannot rely on any document which they fail to disclose or which they fail to permit for inspection
- If a client fails to disclose a document which they need to or sign a disclosure statement knowing they are signing a false statement - must cease to act
What is a client required to do under standard disclosure order
The party must make a reasonable search for documents
What is reasonable depends on:
- Number of documents involved
- Nature and complexity of proceedings
- How difficult or expensive it is to retrieve a document
- Significance of the document
What is legal advice privilege
This protects confidential communications between a lawyer and their client where those communications are for the purpose of giving or seeking legal advice
What is litigation privilege
Protects communications between lawyers or their clients and any third parties for the purpose of obtaining advice or information in connection with an existing or reasonably contemplated litigation
What is without prejudice communication
A document whose purpose is a genuine attempt to settle a dispute
Mediation
Mediation involves the appointment of an independent mediator who engages in “shuttle diplomacy” to bring the two parties together to reach a deal/resolution. This is done in person during a one-day session. The process is entirely voluntary and confidential.
- Flexible
- Privacy
- Helps to reconcile relationships - hear the other party’s side
- Limit stress and expense of court proceedings
What is consideration (requirement for a valid contract)
The price one party pays to make another party’s promise enforceable
What is promissory estoppel?
It is an equitable doctrine which prevents a party from going back on a promise when another party has acted on it to their detriment
- It allows a promise to be enforced despite not being supported by consideration
- It aims to protect a party who relied on it to their detriment
- Often used in instances of part payment of debt
Four elements:
1. It can only be used as a defence, not a cause of action
2. There must be clear and unequivocal promise or representation that existing legal rights will not be fully enforced
3. There must be change of position in reliance on promise
4. It would be inequitable to allow promisor to go back on promise
What does it mean if an agreement is subject to contract?
It is NOT binding - neither party intends to be bound until the contract is made, each party reserves the right to withdraw until such time as the contract is made
What does it mean to ‘lack capacity’
Unable to make a decision for oneself in relation to the matter, at the time the contract is entered into
Effect of entering into a contract for sale with someone with mental incapacity:
- It is binding
- Unless the person claiming incapacity can establish
a) they did not understand what they were doing
b) the other party knew this to be the case
What is the effect of privity of contract?
A contract creates rights and obligations only between those party to it. This means that no person can sue or be sued on a contract unless they are a party to it
What is the impact of Contract (Rights of Third Parties) Act 1999?
Allows a third party in certain circumstances to enforce a term of a contract to which they are not a party, even if they have not provided any consideration
- It does not allow a contract to be enforced against a third party
For it to apply:
1. Contract must specifically provide that X has the right to enforce/sue on the contract (expressly identified)
2. Contract purports to confer a benefit
3. Not the case that it appears the contracting parties did not intend the term to be enforceable by third party
Burden of proof:
Contract purports to confer benefit on third party = rebuttable presumption that third party can enforce the term
Remedies: any remedy available had the third party been party to the contract
- The parties can exclude this via an ‘exclusion of third party rights’ clause
What is an express term vs implied term of a contract?
- An express term is a statement made by the parties by which they intend to be bound. These can be orally, in writing or both
- An implied term is not one which has been agreed by the parties, but one which the law deems exists
The difference between a term and representation, is that a term is intended to be binding
- If a term is not fulfilled, this gives rise to breach of contract
Incorporation of express terms by signed written contract
The general rule is that all terms of a signed contract are binding, even if a party has not read or understood the terms
- To be incorporated by signature, the document must be contractual and signed at or before time of contracting
Exception: if the document was not one which was intended to have a contractual effect, then the terms will not form part of the contract (e.g., signing a document acknowledging receipt of goods / post-contractual document does not indicate intention to be bound)
What is an entire agreement clause?
An ‘entire agreement clause’ provides that a particular document constitutes the entire agreement between the parties. This means that parties to the written contract can reduce the possibility of a claim that there are binding oral terms alongside the written terms
What is incorporation by a course of dealing?
If a clause has been brought to the notice of the other part during previous dealings, it may be implied into current transaction even though it has been omitted on this occasion
- Need to show consistent and regular course of dealing
What are consequences of breach of a condition?
A condition is an important term going to the root of the contract
Breach gives rise to right of election:
- Affirm contract & claim damages OR
- Terminate & claim damages
Note - contract does not terminate automatically, there is a choice
